On February 2, 2023, in the 1^st session of the 44^th Parliament of the House of Commons of Canada, Bill C-22 An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act (the “Canada Disability Benefit Act”)^[1] was passed.

The Canada Disability Benefit Act is now before the Senate of Canada. Should it receive royal assent, this legislation will come into force no later than the first anniversary of the day on which it receives royal assent.

This article will provide an overview of this proposed legislation and will look at the history behind Bill C-22, its purposes, and what Canada hopes to achieve with the creation of the Canada Disability Benefit Act.

Background

On September 23, 2020, the Government of Canada committed in its Speech from the Throne to create the first-ever Disability Inclusion Action Plan. The plan was to include:

• A new Canada Disability Benefit;
• A robust employment strategy for Canadians with disabilities; and
• A better process to determine eligibility for federal disability programs and benefits.

In the first attempt to implement this plan, the Government of Canada introduced Bill C-35 in 2021. The Bill proposed a tax-free, monthly payment to low-income, working-age persons with disabilities. In the summer of 2021, the Government of Canada launched a first round of engagement with the disability community through ministerial roundtables and an online survey which received over 8,500 responses. Unfortunately, this legislation died later that year when the Liberals called an election.

Bill C-35 was re-introduced as Bill C-22 in the House of Commons on June 2, 2022, by the Honourable Minister of Employment, Workforce Development and Disability Inclusion, Carla Qualtrough. According to the Minister,

When the pandemic struck, Canadians with disabilities were hit hard. Many experienced job loss and financial pressures, which increased existing financial insecurity and hardship. By proposing to create the new Canada Disability Benefit, the Government of Canada is responding to the unique and vital needs of persons with disabilities. This supplementary income benefit would help people to rebound and to fully participate in all aspects of our society and economy. It would address the longstanding financial hardships experienced by persons with disabilities predating the pandemic, and would be an investment in the realization of a fully inclusive society. Canadians with disabilities continue to be at the centre of our country’s inclusive recovery.^[2]

This legislation supports previous efforts to transform Canada and make it barrier free in areas under federal jurisdiction (including employment) by or before January 1, 2040, through the identification, removal, and prevention of barriers. These initiatives began in 2019 when the government enacted the Accessible Canada Act^[3] which came into force on July 11, 2019.

The creation of the Canada Disability Benefit Act appears to be widely accepted and welcome news for working-age Canadians living with a disability. According to the 2017 Canadian Survey of Disabilities, nearly 850,000 (21%) of working-age Canadians with disabilities live in poverty. Accordingly, persons with severe disabilities (26%) and very severe disabilities (31%) are particularly vulnerable and experience a higher rate of poverty, nearly three times the rate of persons without disabilities (11%). Working-age Canadians with severe disabilities who live alone (44%) and are lone parents (37%), are among the highest risk group and are most likely to live below the poverty line.^[4]

The same survey also found that Canadians with disabilities including women, men, LGBTQ2 people, racialized people, and Indigenous people are more likely to be financially insecure than other Canadians. The survey also indicated that:

• A quarter (25%) of Canadians with disabilities spend over 30% of their total income on shelter costs;
• Only 59% of Canadians with disabilities aged 25 to 64 are gainfully employed, compared to 80% of Canadians without disabilities; and
• Canadians with disabilities aged 25 to 64 earn less than Canadians without disabilities (12% less for Canadians with milder disabilities and 51% less for Canadians with more severe disabilities).^[5]

The Act: Purposes and What Canada Hopes to Achieve

Bill C-22 is created as a “framework legislation.” Therefore, most of the substance of the legislation will be developed after it comes into force and through regulations created by the Governor in Council. As we will see shortly, the framework comprehensively outlines the regulations which the Governor in Council can make.

As its main purpose, the Canada Disability Benefit Act aims to “reduce poverty and to support the financial security of working-age persons with disabilities.”^[6]

The Canadian Human Rights Commission (the “CHRC”), has commented that “[t]hese purposes engage both the CRPD and the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”). This is important because as a signatory to the CRPD and the ICESCR, Canada has committed to fulfilling many basic economic, social and cultural rights, such as the human right to adequate food and nutrition, clothing, housing, health care, social security, education, freely-chosen work, child care and social security.^[7]

The preamble of the Canada Disability Benefit Act provides insight into what Canada is hoping to achieve or address with this legislation, including:

• Supporting working-age persons with disabilities who are more likely to live in poverty and face barriers to employment (including work disincentives, i.e. loss of income or other benefits as a result of being employed);
• Building on Canada’s successes in addressing poverty through providing benefits for seniors and families with children; and
• Aspirational goals for Canada to be a world leader in the eradication of poverty;

The preamble also indicates that the government is cognizant of the framework’s place within the context of the Canadian Charter of Rights and Freedoms which guarantees persons with disabilities the right to equal protection and benefit of the law without discrimination. The Canada Disability Benefit Act also adheres to the overall goal of poverty reduction and contributes to the progressive realization of Canada’s International obligations under the United Nations Convention on the Rights of Persons with Disabilities (the “CRPD”).

The preamble mentions that, in the spirit of “Nothing Without Us,” the Canada Disability Benefit Act recognizes the importance of developing support measures for persons with disabilities, and engaging the disability community, in accordance with the Accessible Canada Act which specifies that “persons with disabilities must be involved in the development and design of laws, policies, programs, services and structures.”^[8]

The Canada Disability Benefit Act Framework

While most of the details of the legislation are to be spelled out in criteria to be set out in the regulations, the Canada Disability Benefit Act does set out some conditions.

The Benefit

Accordingly, the benefit will not be subject to bankruptcy or insolvency laws; the benefit cannot be assigned, charged, attached, or given as security; the benefit cannot be retained by way of deduction, set-off or compensation under any other Act.^[9] Of note, the benefit will be considered garnish able moneys for the purpose of Family Orders and Agreements Enforcement Assistance Act.^[10]

The benefit payments themselves will be drawn from the Consolidated Revenue Fund.^[11]

The actual amount of the benefit will be set out in the regulations, however, in making this regulation, the Canada Disability Benefit Act holds that the Governor in Council must take into consideration the Official Poverty Line as defined in section 2 of the Poverty Reduction Act.^[12]

“Nothing Without Us” – The Canada Disability Benefit Act and Collaboration

The legislation provides that the “Minister must provide persons with disabilities from a range of backgrounds with meaningful and barrier-free opportunities to collaborate in the development and design of the regulations, including regulations that provide for the application process, eligibility criteria, the amount of a benefit and the appeal processes.”^[13]

To this end, the Canada Disability Benefit Act provides that within six months of coming into force, the Minister must table a report that sets out the “manner in which the obligation to engage and collaborate with the disability community in relation to the development of regulations has been implemented.”^[14]

Amending the Income Tax Act

The Canada Disability Benefit Act will amend the Income Tax Act at paragraph 241 (4)(d) which deals with providing taxpayer information, by adding the following after paragraph (vii.5):

(vii.51) to an official solely for the purposes of the administration and enforcement of the Canada Disability Act or the evaluation of or formulation of policy for that Act,^[15]

Regulations

The Canada Disability Benefit Act provides that the Governor in Council may make regulations in respect of:

• Eligibility criteria;
• Conditions to be met in order to receive or continue to receive a benefit;
• The amount of a benefit and the method to determine that amount;
• Indexing benefit amounts to inflation;
• Payment periods and the amount to be paid each period;
• Applications for a benefit, including regulations providing for an application process that is without barriers as defined in section 2 of the Accessible Canada Act;
• Amendment or rescission of decisions made by the Minister;
• Reviews or reconsiderations of decisions made under this Act;
• Appeals;
• The circumstances in which retroactive payments may be made to persons who do not apply in the time specified but are otherwise eligible;
• Applications made on behalf of persons who are incapable of managing their own affairs;
• Circumstances in which the Minister may deem an applicant or beneficiary dead;
• Authorizing the Minister to correct administrative errors; and
• Debts and overpayments.

Regulatory Protections

The Canada Disability Benefit Act also establishes offences that are punishable on summary conviction for the commission of:

1. Knowingly using false information or another person’s identity information for the purpose of obtaining a benefit for themselves;
2. Counselling a person to apply for a benefit with the intent to steal all or a substantial part of it; and
3. Knowingly making false or misleading representations in relation to an application.

Part and parcel to this, the Canada Disability Benefit Act establishes a system of administrative monetary penalties applicable to:

1. Knowingly making false or misleading representations in relation to an application; and
2. Making an application for, and receiving, a benefit while knowingly not being eligible to receive it.

Implementation

The Canada Disability Benefit Act has been proposed as a federal income supplement for working-age persons with disabilities. It will arguably become a critical piece of Canada’s existing social safety net which also includes the Old Age Security, the Guaranteed Income Supplement, and the Canada Child Benefit.

According to Jinyan Li, professor at Osgoode Hall and co-director of its master of tax program, “[t]he government has used the guaranteed income supplement (GIS) as a model: the disability benefit will end at age 65 when the GIS takes effect and, like the GIS, it will be governed by stand-alone legislation, not the tax act.” Professor Li also notes that “the disincentive to work is less a concern for senior citizens under the GIS than it is for working-age persons.”^[16]

The Canada Disability Benefit Act also includes a clause which authorizes the Governor in Council to make regulations to ensure compliance with the Act. Specifically, the Governor in Council may make regulations to adapt section 44.2 of the Old Age Security Act (which makes provisions for the administration and enforcement of seniors’ benefits under that Act) and apply it to the verification of compliance or the prevention of non-compliance with the Canada Disability Benefit Act.^[17]

The CHRC has recommended that the Canada Disability Benefit Act should be passed into law and implemented as expeditiously as possible. They also recommend that the Canada Disability Benefit Act could be strengthened by:

• Better articulating Canada’s obligations under international human rights treaties and under the National Housing Strategy Act;
• Better reflecting the human rights principle of intersectionality; and
• Better reflecting the human rights principle of meaningful engagement (“Nothing Without Us”).^[18]

Concluding Thoughts

“Nothing Without Us” is the slogan that was adopted by the international disability community during consultations on the creation of the CRPD. It represents the spirit of inclusion, collaboration, and meaningful engagement.

The Canada Disability Benefit Act recognizes that many people with disabilities face barriers to obtaining and enjoying an adequate standard of living. With that being said, Canada is long overdue for statutory revisions which take into account the rising cost of living, inflation, and the vulnerability of Canadians living with a disability.

It is hoped that the creation and implementation of this new legislation will be the start of further amendments and additions to Canada’s social safety net, providing more support for those who need it the most.

—

[1] Bill C-22, An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act, 1^st session, 44^th Parliament House of Commons, 2022 [Canada Disability Benefit Act].

[2] Government of Canada “Government of Canada introduces legislation to create the new Canada Disability Benefit” June 22, 2021, accessed online: https://www.canada.ca/en/employment-social-development/news/2021/06/000754—tabling-of-cdb-legislation.html

[3] S.C. 2019, c. 10.

[4] Government of Canada, “Legislation to create a new Canada Disability Benefit begins second reading in the House of Commons” September 20, 2022, Employment and Social Development Canada, accessed online: https://www.canada.ca/en/employment-social-development/news/2022/09/legislation-to-create-a-new-canada-disability-benefit-begins-second-reading-in-the-house-of-commons.html

[5] Ibid.

[6] Canada Disability Benefit Act, s. 3.

[7] Canadian Human Rights Commission, “Submission to Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities” December 21, 2022, accessed online: https://www.chrc-ccdp.gc.ca/en/publications/submission-standing-committee-human-resources-skills-and-social-development-and-the [CHRC].

[8] Ibid., s. 6(f).

[9] Canada Disability Benefit Act, s. 9.

[10] R.S.C., 1985, c. 4 (2^nd Supp.).

[11] The Consolidated Revenue Fund is the account into which the government deposits taxes, tariffs, excises and other revenue, once collected, and from which it withdraws the money it requires to cover its expenditures.

[12] See Poverty Reduction Act, S.C. 2019, c. 29, s. 315, section 2 where the Official Poverty Line is defined as the Market Basket Measure, as published by Statistics Canada under the authority of the Statistics Act, R.S.C., 1985, c. S-19.

[13] Ibid., s. 11.1.

[14] Ibid., s. 11.2(1).

[15] Ibid., s. 13.

[16] Jinyan Li, “Opinion: How to fix the Canada disability benefit” December 1, 2022, Financial Post, accessed online: https://financialpost.com/opinion/how-to-fix-canada-disability-benefit.

[17] Canada Disability Benefit Act, s. 11(1)(s).

[18] CHRC, supra note 6.